Opinion
22-CV-7808 (LTS)
03-22-2023
ANA CALDERON, Plaintiff, v. KONESKA HEALTH, Defendant.
ORDER TO AMEND
LAURA TAYLOR SWAIN, Chief United States District Judge:
Plaintiff, who is appearing pro se, brings this action under the Fair Labor Standards Act (“FLSA”) and the Americans with Disabilities Act (“ADA”), alleging that Defendant Koneska Health discriminated against her in her employment. She also asserts a state law breach of contract claim. By order dated September 20, 2022, the Court granted Plaintiff's request to proceed in forma pauperis (“IFP”), that is, without prepayment of fees. For the reasons set forth below, the Court grants Plaintiff leave to file an amended complaint within 60 days of the date of this order.
STANDARD OF REVIEW
The Court must dismiss an IFP complaint, or any portion of the complaint, that is frivolous or malicious, fails to state a claim on which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2)(B); see Livingston v. Adirondack Beverage Co., 141 F.3d 434, 437 (2d Cir. 1998). The Court must also dismiss a complaint when the Court lacks subject matter jurisdiction of the claims raised. See Fed. R. Civ. P. 12(h)(3).
While the law mandates dismissal on any of these grounds, the Court is obliged to construe pro se pleadings liberally, Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009), and interpret them to raise the “strongest [claims] that they suggest,” Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006) (internal quotation marks and citations omitted) (emphasis in original). But the “special solicitude” in pro se cases, id. at 475 (citation omitted), has its limits -to state a claim, pro se pleadings still must comply with Rule 8 of the Federal Rules of Civil Procedure, which requires a complaint to make a short and plain statement showing that the pleader is entitled to relief.
Rule 8 requires a complaint to include enough facts to state a claim for relief “that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible if the plaintiff pleads enough factual detail to allow the Court to draw the inference that the defendant is liable for the alleged misconduct. In reviewing the complaint, the Court must accept all well-pleaded factual allegations as true. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). But it does not have to accept as true “[t]hreadbare recitals of the elements of a cause of action,” which are essentially just legal conclusions. Twombly, 550 U.S. at 555. After separating legal conclusions from well-pleaded factual allegations, the Court must determine whether those facts make it plausible - not merely possible - that the pleader is entitled to relief. Id.
BACKGROUND
Plaintiff asserts that, in January 2021, she quit her job in Arizona to work for Koneska Health, which promised her a long term employment contract. However, she asserts that she was “unfairly hired by Koneska Health and entered into an unfair contract with discriminatory practices.” (ECF 1, at 7.) Plaintiff claims the following:
Koneska discriminated against me because of my psy illness. They offered me a contractor role, instead of an employee role. They fired me while I was having a mental crisis and hospitalized.(Id.) Plaintiff further asserts that the “misconduct of HR led to severe economic damages” and that she was unemployed for many months, which affected her overall health. (Id. at 8.) She seeks money damages.
DISCUSSION
A. Fair Labor Standards Act
Plaintiff alleges that Koneska violated the FLSA. The FLSA seeks to eliminate “labor conditions detrimental to the maintenance of the minimum standard of living necessary for health, efficiency, and general well-being of workers.” 29 U.S.C. § 202(a). It does so, in part, by setting substantive wage, hour, and overtime standards. Kasten v. Saint-Gobain Performance Plastics Corp., 563 U.S. 1, 11 (2011). The FLSA imposes liability on any “employer” who violates the Act's minimum wage, overtime, and retaliation provisions. See 29 U.S.C. § 216(b), (e)(2). The statute requires all employers to pay each of their employees “not less than” the prevailing minimum wage. 29 U.S.C. § 206(a)(1).
For a defendant to be held liable under the FLSA, a plaintiff must establish that she was the defendant's employee. The FLSA defines “employer” as an entity “acting directly or indirectly in the interest of an employer in relation to an employee,” 29 U.S.C. § 203(d), and an “employee” as “any individual employed by an employer,” 29 U.S.C. § 203(e)(1). An entity “employs” an individual under the FLSA if it “suffer[s] or permit[s]” that individual to work. 29 U.S.C. § 203(g). The Court of Appeals for the Second Circuit has adopted an “economic realities” test to determine whether an individual was an employee entitled to the protections of the FLSA or, in the alternative, was an independent contractor. See, e.g., Zheng v. Liberty Apparel Co., Inc., 355 F.3d 61, 66 (2d Cir. 2003); Brock v. Superior Care, Inc., 840 F.2d 1054, 1058 (2d Cir. 1988) (independent contractors are not covered by the FLSA). Generally, an employment relationship exists under the FLSA when the “economic reality” is such that the “alleged employer possessed the power to control the workers in question.” Herman v. RSR Sec. Servs. Ltd., 172 F.3d 132, 139 (2d Cir. 1999) (citing Carter v. Dutchess Cmty. Coll., 735 F.2d 8, 12 (2d Cir. 1984)).The factors considered include: “(1) the degree of control exercised by the employer over the workers, (2) the workers' opportunity for profit or loss and their investment in the business, (3) the degree of skill and independent initiative required to perform the work, (4) the permanence or duration of the working relationship, and (5) the extent to which the work is an integral part of the employer's business.” Hart v. Rick's Cabaret Int'l, Inc., 967 F.Supp.2d 901, 912 (S.D.N.Y. 2013).
It is unclear whether Koneska was Plaintiff's employer for purposes of the FLSA. By Plaintiff's own admission, Koneska hired her as a contractor rather than an employee. Further, even if Koneska could be considered Plaintiff's employer, the facts alleged in the complaint do not suggest that Koneska violated the FSLA with respect to Plaintiff's employment. In fact, Plaintiff does not mention her wages or allege that Koneska failed to pay her the required compensation. Rather, Plaintiff complains of the “economic damages” caused by the termination of her employment, which is not subject to the FLSA. (ECF 1, at 8.) Plaintiff therefore fails to state a claim under the FLSA.
As set forth below, however, the Court grants Plaintiff leave to amend her FLSA claim. Should she amend her complaint, she must state facts showing that Koneska was her employer and it failed to pay her wages in accordance with FLSA.
B. Americans with Disabilities Act
Plaintiff asserts that Koneska violated the ADA by failing to accommodate her disability. As described below, Plaintiff does not state a claim under the ADA.
“The ADA prohibits discrimination against a ‘qualified individual on the basis of disability' in the ‘terms, conditions, and privileges of employment.'” Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. § 12112(a)). A person is disabled within the meaning of the ADA if the person has “a physical or mental impairment that substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Discrimination under the ADA includes “a failure to make reasonable modifications.” 42 U.S.C. § 12182(b)(2)(A)(ii).
To state a claim of discrimination in violation of the ADA, a plaintiff must allege facts showing that: (1) her employer is subject to the ADA; (2) she is disabled within the meaning of the ADA (or perceived to be so by her employer); (3) she was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation; (4) she suffered an adverse employment action; and (5) the adverse employment action “took place under circumstances giving rise to an inference of discrimination.” Davis v. N.Y.C. Dep't of Educ., 804 F.3d 231, 235 (2d Cir. 2015) (citations omitted); see also Noll v. Int'l Bus. Machines Corp., 787 F.3d 89, 94 (2d Cir. 2015) (“The ADA . . . require[s] an employer to afford reasonable accommodation of an employee's known disability unless the accommodation would impose undue hardship on the employer.”) (citing 42 U.S.C. § 12112(b)(5)(A)). An employment discrimination claim under the ADA is premised on the existence of an employer-employee relationship. Lauria v. Nextel of New York, Inc., 438 F.Supp.2d 131, 140 (E.D.N.Y. 2006) (“[I]f an individual is neither an employee, or former employee of a company, he or she does not have the right to sue under the ADA.”). The ADA provides antidiscrimination protection to employees, but not independent contractors. See Attis v. Solow Realty Dev. Co., 522 F.Supp.2d 623, 627 (S.D.N.Y. 2007) (“[P]laintiff is not covered by the ADA or the NYSHRL because she was ‘an independent contractor,' and only employees, not independent contractors, are covered by those statutes.”).
Under the common law of agency, the thirteen factors articulated by the Supreme Court in Community for Creative Non-Violence v. Reid, 490 U.S. 730 (1989), govern whether a person is an employee or an independent contractor. The thirteen factors are: (1) the hiring party's right to control the manner and means by which the product is accomplished; (2) the skill required; (3) the source of the instrumentalities and tools; (4) the location of the work; (5) the duration of the relationship between the parties; (6) whether the hiring party has the right to assign additional projects to the hired party; (7) the extent of the hired party's discretion over when and how long to work; (8) the method of payment; (9) the hired party's role in hiring and paying assistants; (10) whether the work is part of the regular business of the hiring party; (11) whether the hiring party is in business; (12) the provision of employee benefits; and (13) the tax treatment of the hired party. Reid, 490 U.S. at 751-52.
Plaintiff has not stated a claim under the ADA against Koneska for several reasons. First, she does not allege that she was an employee of Koneska who was covered by the ADA; she asserts that she was hired as a contractor rather than an employee. Second, she does not describe her disability or allege facts suggesting that she is disabled within the meaning of the ADA. For example, although she asserts that she has a “psy illness” (ECF 1, at 7), she does not explain how the alleged impairment “substantially limits one or more major life activities.” 42 U.S.C. § 12102(1)(A). Third, she does not describe any ways in which her employer failed to accommodate her disability. Fourth, she does not allege facts suggesting that her disability was a motivating factor in her employer's decision not to accommodate her disability, or to terminate her employment.
Because Plaintiff states that Koneska violated the ADA with respect to her disability, the Court grants her leave to amend this claim to allege facts showing that she has a basis for this claim.
C. Exhaustion of Administrative Remedies
Before filing suit for employment discrimination under the ADA, a plaintiff must file a timely charge with the Equal Employment Opportunity Commission (“EEOC”), and obtain a Notice of Right to Sue. See 42 U.S.C. § 12117(a) (incorporating into the ADA the filing requirements for Title VII claims set forth in 42 U.S.C. § 2000e-5); see also Chin v. Port Auth. of N.Y. & N.J., 685 F.3d 135, 146 (2d Cir. 2012). In New York, this charge must be filed with the EEOC within 300 days of the alleged act of discrimination. 42 U.S.C. § 2000e-5(e)(1); see Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 109 (2002); Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325-28 (2d Cir. 1999). A plaintiff may then file a federal complaint with a district court within 90 days of receiving a Notice of Right to Sue from the EEOC, if she is does not prevail during her EEOC proceedings. See 42 U.S.C. § 2000e-5(f)(1).
The exhaustion of these administrative remedies is not a jurisdictional requirement, but rather, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982); see also Fort Bend Cnty., Tex. v. Davis, 139 S.Ct. 1843, 1846 (2019) (“Title VII's charge-filing instruction is not jurisdictional....”); Hardaway v. Hartford Public Works Dep't, 879 F.3d 486, 491 (2d Cir. 2018) (“exhaustion operates as an affirmative defense”).
Here, Plaintiff alleges that Koneska violated the ADA in January 2021. She does not state, however, whether she filed a charge with the EEOC. If Plaintiff has exhausted her administrative remedies with the EEOC, she should complete the relevant section on the amended complaint form, which includes questions addressing administrative remedy exhaustion.
D. State Law Claims
Plaintiff also asserts breach of contract claims arising under state law. A district court may decline to exercise supplemental jurisdiction over state law claims when it “has dismissed all claims over which it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). Generally, “when the federal-law claims have dropped out of the lawsuit in its early stages and only state-law claims remain, the federal court should decline the exercise of jurisdiction.” Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988)). It is not clear that Plaintiff can state any claims of which the Court has original jurisdiction, and thus the Court will determine at a later stage whether to exercise its supplemental jurisdiction of any state law claims Plaintiff may be asserting. See Kolari v. New York-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006) (“Subsection (c) of § 1367 ‘confirms the discretionary nature of supplemental jurisdiction by enumerating the circumstances in which district courts can refuse its exercise.'”) (quoting City of Chicago v. Int'l Coll. of Surgeons, 522 U.S. 156, 173 (1997)).
LEAVE TO AMEND
Plaintiff proceeds in this matter without the benefit of an attorney. District courts generally should grant a self-represented plaintiff an opportunity to amend a complaint to cure its defects, unless amendment would be futile. See Hill v. Curcione, 657 F.3d 116, 123-24 (2d Cir. 2011); Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). Indeed, the Second Circuit has cautioned that district courts “should not dismiss [a pro se complaint] without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000) (quoting Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999)). Because Plaintiff may be able to allege additional facts to state a valid claims under the FLSA and ADA, the Court grants Plaintiff 60 days' leave to amend her complaint to detail her claims.
Plaintiff is granted leave to amend her complaint to provide more facts about her claims. In the “Statement of Claim” section of the amended complaint form, Plaintiff must provide a short and plain statement of the relevant facts supporting each claim against each defendant. If Plaintiff has an address for any named defendant, Plaintiff must provide it. Plaintiff should include all of the information in the amended complaint that Plaintiff wants the Court to consider in deciding whether the amended complaint states a claim for relief. That information should include:
a) the names and titles of all relevant people;
b) a description of all relevant events, including what each defendant did or failed to do, the approximate date and time of each event, and the general location where each event occurred;
c) a description of the injuries Plaintiff suffered; and d) the relief Plaintiff seeks, such as money damages, injunctive relief, or declaratory relief.
Essentially, Plaintiff's amended complaint should tell the Court: who violated her federally protected rights and how; when and where such violations occurred; and why Plaintiff is entitled to relief.
Because Plaintiff's amended complaint will completely replace, not supplement, the original complaint, any facts or claims that Plaintiff wants to include from the original complaint must be repeated in the amended complaint.
E. New York Legal Assistance Group
Plaintiff may consider contacting the New York Legal Assistance Group's (“NYLAG”) Clinic for Pro Se Litigants in the Southern District of New York, which is a free legal clinic staffed by attorneys and paralegals to assist those who are representing themselves in civil lawsuits in this court. The clinic is run by a private organization; it is not part of, or run by, the court. It cannot accept filings on behalf of the court, which must still be made by any pro se party through the Pro Se Intake Unit. A copy of the flyer with details of the clinic is attached to this order.
CONCLUSION
Plaintiff is granted leave to file an amended complaint that complies with the standards set forth above. Plaintiff must submit the amended complaint to this Court's Pro Se Intake Unit within sixty days of the date of this order, caption the document as an “Amended Complaint,” and label the document with docket number 22-CV-7808 (LTS). An Amended Complaint for Employment Discrimination form is attached to this order. No summons will issue at this time. If Plaintiff fails to comply within the time allowed, and she cannot show good cause to excuse such failure, the complaint will be dismissed for failure to state a claim upon which relief may be granted.
The Court certifies under 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith, and therefore IFP status is denied for the purpose of an appeal. Cf. Coppedge v. United States, 369 U.S. 438, 444-45 (1962) (holding that an appellant demonstrates good faith when he seeks review of a nonfrivolous issue).
SO ORDERED.